Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the judgment and order dated February 20, 2009 passed by the learned Additional District Judge, Fourth Court, Paschim Medinipur in Misc. Appeal No.98 of 2008 thereby settting aside the order dated July 31, 2008 passed by the learned Civil Judge (Senior Division), First Court, Paschim Medinipur in Title Suit No.92 of 2006.
(2.) THE short fact is that the plaintiff/petitioner herein instituted suit for declaration of title and injunction in respect of the suit properties, as described in the schedule of the plaint against the opposite parties. THE opposite parties herein have entered appearance in the suit and they are contesting the said suit by filing a written statement. THE defendants have contended that the suit is not maintainable. Accordingly, by an order dated July 31, 2008, he has held that the suit is maintainable. Being aggrieved, the defendants preferred a misc. appeal being Misc. Appeal No.98 of 2008 and that misc. appeal was allowed on contest. Being aggrieved, the plaintiff has preferred this application. Upon hearing the learned counsel for parties and on going through the materials on record, I find that one Paritosh Patra (now deceased), father of the petitioner, executed a Will in respect of the suit properties giving to the four heirs, namely, his wife, two sons (including the plaintiff) and one daughter in equal share. Thereafter, the wife of late Paritosh Patra, that is, the mother of the plaintiff filed an application for letters of administration in respect of the Will and the letters of administration were granted by the competent Court. The plaintiff have contended that he is the executor of the Will and so as an executor of the Will, he is entitled to the reliefs sought for in the plaint. On the other hand, the defendants have contended that the suit is not maintainable. The learned Trial Judge without framing any issues has decided that the suit is maintainable. The learned lower appellate Court has set aside the order of the learned Trial Judge holding that apparently the plaintiff has no right to file a suit for declaration that he is the executor and so apparently the suit as framed is not maintainable because the right of the executor of the plaintiff has already been lost on the date of granting the letters of administration on May 22, 2007 in O.S. No.11 of 1995. Accordingly, the learned lower appellate Court has observed that the plaintiff could at best get an allotment of his 1/4th share in the suit properties if a suit for partition is filed and beside that there is no other remedy to him. Mr. Mukherjee, learned Advocate appearing on behalf of the petitioner, submits that the observations arrived at by the learned lower appellate Court could not be supported and it must be set aside.
(3.) MR. Roychowdhury, learned senior Advocate, appearing on behalf of the opposite parties, drawing my attention to a portion of the judgment submits that as per observation of the learned lower appellate Court, the suit is not maintainable and as such nothing is left for decision and so the appropriate orders may be passed. Upon hearing the submission on behalf of both the sides and on going through the materials on record, I find that the learned lower appellate Court has held that apparently the plaintiff has no right to file such a suit for declaration that he is the executor and so apparently it is found that the suit as framed is not maintainable. Thus, the findings of the learned lower appellate Court are prima facie and not the conclusive determination as to the maintainability of the suit or if the plaintiff has any right to proceed further with the suit. The learned lower appellate Court has directed the learned Trial Judge to frame issues and then to decide the question of maintainability of the matter.;